If the current judicial reform reasonableness standard bill is passed into Israeli law, it would impact executive branch appointments, the professional development of policies, and allow for self-interested political practices, Senior Israel Democracy Institute fellow and Ono Academic College law professor Amichai Cohen told The Jerusalem Post in an interview on Wednesday.
The reasonableness bill version currently being prepared for final readings in the Constitution, Law and Justice Committee wouldn’t completely cancel the reasonableness standard, Cohen said, but would prevent its use against cabinet members.
The common law standard in which courts could strike an administrative decision for being far beyond what a reasonable and responsible authority would undertake would still apply to non-elected bureaucrats.
“One issue that politicians have been most anxious about is appointments,” said Cohen.
The reasonableness standard has been used in cases of ministerial appointments, such as that of Shas Chairman Arye Deri. It was deemed by the court extremely unreasonable that a person convicted of multiple corruption crimes during his public service would be the interior and health minister, and so Deri was ordered removed from his position.
Professor Amichai Cohen (credit: ODED ANTMAN)Concerns about restricted reasonableness
Anti-judicial reformists have expressed concern that Deri could be reinstated if reasonableness were to be restricted. Cohen said that this standard has also been used on senior appointments in the executive branch.
It is not just corrupt people that might be advanced with restricted reasonableness, but corrupt practices.
Cohen explained that though court interference is rare, reasonableness allows legal advisers to require that officials lay out their reasoning for their policies and decisions. This ensures that policies have properly considered all the challenges and public interests at play in a matter.
“It’s become a very important part of how decisions in Israel are made,” said Cohen.
Without this extra work to ensure professional conduct, politicians can use the resources of the entire country for certain groups in society rather than the entire public’s interest. A politician may invest more in the interest of their supporters.
Cohen gave hypothetical examples such as ultra-orthodox people receiving more resources, or more investment being placed in settlements than the entire Israeli public might be comfortable with.
While bureaucrats wouldn’t be immune to judgements based on reasonableness, Cohen said that decisions favoring the interests of specific groups might be moved to elected officials to immunize them from scrutiny.
Cohen said that there was a whole school of rulings on unreasonable practices that could be impacted by the bill. Famous examples would include forcing students to go to a Sderot school improperly protected from rockets, or the decision by a local council not to build a mikveh in Kfar Vradim.
Another example Cohen mentioned was Yisrael Beytenu head and former Finance Minister Avigdor Liberman not allowing families in which one of the parents studied full time at a yeshiva apply for child care subsidies.
Cohen said that the current formulation doesn’t allow even a limited form of reasonableness that focuses on arbitrary and capricious decision. Arbitrary decisions are those with not enough basis in fact to inform the policy, and those that are capricious are those decisions that no rational person would make. According to Cohen, capricious decision might be to immediately halt subsidies for child care without advance warning.
“If it [reasonableness standard] were the only thing on the table, I would assume that the court would develop new means to support legal advisors in ensuring thorough decision making,” said Cohen, but said that it seemed that the bill was aimed at legal advisors and the judiciary to warn them not to interfere in the government agenda, or else see further reforms implemented.
One element that would not be impacted by the bill, is the use of reasonableness standard by the court in “reviewing opinions of the Attorney-General,” said Cohen.
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